Feds go hunting for local officials

The federal Department of Justice makes investigating and prosecuting public corruption, including by state and local officials, a major priority.

And the focus is not just on major corruption with national implications or involving federal programs. Acting principally through local branches of the FBI and U.S. Attorneyâ€™s Office, DOJ views any corruption by any state or local official, regardless of how small or distant from federal operations, as its business.

The justification is that corruption, regardless of how small, robs the public of the honest administration of their government, and local law enforcement is frequently conflicted, complaisant or complicit.

There is a superficial sensibility to this justification. But there are substantial problems with the role DOJ has arrogated both in theory and in practice, as illustrated by the recent raft of such cases in the Phoenix metro area.

In the first place, there is nothing in the U.S. Constitution that can be even remotely argued to assign the task of policing the integrity of state and local officials to the executive branch of the federal government. Such a role would have been anathema to the framers. In fact, itâ€™s fair to say that if policing the integrity of state and local officials had been an enumerated executive branch responsibility, the Constitution would never have been ratified.

So, how has DOJ managed to assume this extra-constitutional role? Â Congress has enacted some highly elastic statutes that permit DOJ to turn practically any malfeasance by state and local officials into federal crimes. The most elastic are the federal crimes of bribery, mail fraud and wire fraud.

Bribery involving a state or local official working for an entity that takes at least $10,000 from the federal government can become a federal crime. Since the federal government doles out over $600 billion a year to state and local governments, basically there are no state or local officials not subject to a federal bribery charge, irrespective of how profoundly local the venality.

If any element of the misdeed involved sending something through the mail, it can be mail fraud. Through the Internet, itâ€™s wire fraud.

When federal judge Fred Martone gave former Tempe City Councilman Ben Arredondo a relatively light sentence, it was generally assumed that he did so in part because he thought that the federal government had wasted resources in pursuing such a small-potatoes case. And, indeed, Martone said words to that effect in open court.

But perhaps Martone was also influenced by how much the federal government had stretched these elastic statutes. Although Arredondo was initially charged with an independent count of bribery, that accusation was folded into one of the two counts of mail fraud to which he actually pled. One involved receiving sports tickets through the mail. The other was for sending a letter to ASU saying none of the recipients of the scholarship fund he sponsored were relatives.

The conclusion of the Arredondo case is highly unsatisfying. Was he on the take, explicitly selling his official services to special interests outside the sting operation conducted by the federal government? If so, he got off much too lightly. Or was he just a political hustler, maneuvering aggressively in the gray areas but stopping short of an illegal quid pro quo, despite his plea agreement? If so, he was wrongly subjected to the heavy hand of the federal government, which ultimately threatened to criminally prosecute his wife.

The pursuit of Attorney General Tom Horne also yields disturbing questions. After an intense investigation by the FBI, Horne has been charged by Maricopa County Attorney Bill Montgomery with the civil state offense of illegally coordinating with an independent campaign conducted on his behalf.

So, why was it the FBI that launched the investigation, if it involved the violation of a civil state statute? Initially, the FBI thought the elastic mail and wire fraud statutes could apply, but apparently that was too much of a stretch for the local U.S. Attorneyâ€™s Office.

If Horne did violate state law about coordination with an independent campaign, the offense took place in a very few days toward the end of the 2012 campaign, and involved just a handful of people. Yet the FBI, in a sprawling investigation, developed an extraordinary interest in the interpersonal relationships between people in Horneâ€™s Attorney Generalâ€™s Office. Â Although the details are pretty salacious, they have no obvious connection to a campaign finance law violation that is alleged to have occurred before Horne was ever elected to the office.

A staffer to former state House Speaker Jim Weiers, John Mills, has been charged with federal wire fraud for taking money from Weiersâ€™ campaign account for personal uses, and then returning it. His attorney is asking that the case be dismissed because the federal government is stretching the wire fraud statutes too far.

The Mills case best illustrates the practical problem with the role the federal government has arrogated. Arizona has very robust state statutes against bribery, fraud and embezzlement. If the facts against Mills are as alleged, he could be prosecuted under some of them without any question that they were being stretched beyond reason.

So why, if state statutes are so much more apropos, are the feds pursuing an iffy wire fraud case rather than turn it over to state or local prosecutors? Impossible to say for sure.Â But the feds do seem to like to mount their own trophies.

Now there have been several local public corruption cases in which the federal role was unarguably appropriate. Some of the illegal Fiesta Bowl campaign contributions went to candidates for federal office. Former state legislator Richard Miranda embezzled from a federal non-profit and engaged in federal tax evasion in the process.

And the federal government, or at least the U.S. Attorneyâ€™s Office, has shown some restraint. Federal charges werenâ€™t filed against Horne. After investigating Maricopa County Sheriff Joe Arpaio for criminal civil rights violations, which is something the federal government is uniquely empowered to do, the U.S. Attorneyâ€™s Office made a rare public announcement that charges wouldnâ€™t be filed.

Arizona is not being picked on, as some allege. The raft of local public corruption investigations isnâ€™t because Arizona passed SB 1070 or because Gov. Jan Brewer wagged her finger at President Obama.

The investigatory targets in Arizona are a bipartisan lot. And similar small-potatoes federal investigations and charges are occurring all over the country. The feds recently busted some traffic court judges in Philadelphia for fixing tickets for friends and relatives.

The Department of Justice just sees policing the integrity of state and local officials as its job. But is justice truly being served by turning what are really state crimes into federal offenses?

(column for 2.24.13)

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